J-A03029-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JEFFREY BEST 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 916 EDA 2022

Appeal from the Judgment of Sentence Entered March 21, 2022

In the Court of Common Pleas of Philadelphia County 

Criminal Division at No(s): CP-51-CR-0002796-2018

BEFORE: KING, J., SULLIVAN, J., and STEVENS, P.J.E.*

MEMORANDUM BY SULLIVAN, J.: FILED JUNE 29, 2023

Jeffrey Best (“Best”) appeals from the judgment of sentence imposed 

following a non-jury trial at which the trial court found him guilty of rape and 

related offenses.1 We affirm in part, vacate in part, and remand for a new 

hearing to determine whether Best is a sexually violent predator (“SVP”). 

The trial court summarized the trial evidence as follows: 

At approximately 11 P.M. on June 2, 2013, in the Northern 

section of Philadelphia near the intersection of Old York Road and 

Rising Sun Avenue, [Best] approached [D.C. (“Complainant”)] and 

propositioned her for sex. During this time, [D.C.] was working 

as a prostitute to support her drug and alcohol addiction. She had 

never seen nor interacted with [Best] before. She noted that he 

had a limp. [Best] offered her $20 and they proceeded to the side 

of an abandoned house together. [Best] suggested they go to the 

back of the house and, despite her reluctance, [D.C.] agreed. 

[See] N.T., 7/13/21 at 12-16.

____________________________________________

* Former Justice specially assigned to the Superior Court.

1 See 18 Pa.C.S.A. §§ 3121(a)(1), 3123(a)(1), 3124.1, 907, 2706(a)(1).
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[D.C.] testified that [Best] pressed a hard object against her 

back and told her he was going to “blow [her] brains out.” He told 

her to take off all her clothes and [D.C.] complied. [Best] forced 

her to go further back behind the abandoned house. Id. at 14. 

[Best] forced [D.C.] to lay on her back and have vaginal and anal 

sex with him. He continued to repeat that he would blow her 

brains out if she said anything. [Best] forced [D.C.] to turn around 

and get on her knees. He then forcibly had anal sex with [D.C.]. 

After this, [Best] forced [D.C.] to give him oral sex. The entire

interaction lasted for, what [D.C.] described as, “a while.” After 

he was done, [Best] put his clothes on and ran away. Id. at 16.

[D.C.] put on her clothes and ran nearly twenty blocks down 

Broad Street until she saw an ambulance and told EMTs that she 

had been raped. The ambulance took her to Episcopal Hospital

where she received treatment for her injuries and a rape kit was 

administered. [D.C.] sustained scarring on her knees from the 

incident. At trial, [D.C.] showed her knee scarring to the trial 

court, which was still noticeable. At the hospital, she told the 

nurses and doctors that she was raped. She also was interviewed 

by a detective at the hospital. Id. at 26-29.

In 2018, while [D.C.] was in a rehabilitation facility, she was 

contacted by detectives who stated that they had a DNA match 

for her rapist. Id. at 30-31. Detective Manuel Gonzalez, assigned 

to the Special Victim's [sic] Unit (“SVU”), first became involved 

with this case in 2018 when he received a “hit” from the national 

DNA database. [Best] voluntarily gave a DNA swab to detectives 

at some point. This DNA sample from [Best] matched DNA from 

the swabs taken at the hospital from [D.C.’s] body on the night of 

June 2, 2013. [Best’s] DNA was identified as a “major component”

in the DNA mixture from the rape kit. Id. at 58-60, 88-89.

Detective Gonzalez interviewed [D.C.] shortly after the DNA 

match, showing her the interview she did with Detective 

McGoldrick in 2013 and confirming that the details from that 

interview were correct. The following day, Detective Gonzalez did 

a follow up interview with [D.C.] for additional details. His 

partner, Detective Enriquez,[2] showed [D.C.] a photo array where 

____________________________________________

2 The record does not indicate Detective Enriquez’s first name.
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she identified [Best]. Id. at 60-72. [3] Detective Gonzalez then 

interviewed and obtained a signed statement from [Best]. Shortly 

after, [Best] was arrested. Id. at 73-74.

[Best] testified that he has had cerebral palsy his whole life, 

he walks with the assistance of a cane, and has limited use of his 

left side. Id. at 93. He confirmed that he propositioned [D.C.]

for sex, [initially telling her that he had $20 dollars]. Id. at 95. 

[Best] confirmed that they had sex outside of the abandoned 

building but testified that during the exchange there were multiple 

disputes over the manner of sex and the amount of money he was 

to pay her. Id. 95-105.[4] [Best] claimed that at no point did he 

force [D.C.] to have sex with him. Id. at 114. He argued that his 

disability would prevent him from committing this crime. Id. at 

131.

Trial Court Opinion, 6/8/22, at 1-3. The trial court, at the non-jury trial, found 

Best guilty of the above-stated offenses and ordered an assessment by the

Sexual Offender Assessment Board (“SOAB”). See 42 Pa.C.S.A. 

§ 9799.24(a).5 

On March 21, 2022, the trial court held an SVP and sentencing hearing, 

at which the Commonwealth marked as Exhibit C-1, a SOAB report authored

____________________________________________

3 During trial, Best’s counsel impeached D.C. using inconsistencies between 

her 2013 and 2018 reports to SVU detectives, as well as her failures to disclose 

that she was a prostitute, had drug issues, had used drugs and alcohol before

she encountered Best in 2013, and had previously reported to police that she 

had been sexually assaulted. See N.T., 7/31/21, at 76-78. 

4 Best testified at trial that while he was engaging in intercourse with D.C., 

she repeatedly asked for five more dollars and when he ejaculated inside of 

her, she demanded an additional fifteen dollars. See N.T., 7/31/21, at 105.

5 Because Best’s convictions in the present case arise from offenses committed 

in 2013, Subchapter H of the Sexual Offender Registration and Notification Act 

(“SORNA”) applies. See 42 Pa.C.S.A. § 9799.11(c) (noting that Subchapter 

H of the current version of SORNA applies to individuals convicted of sexually 

violent offenses committed on or after December 20, 2012). 
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by Steven Pflugfelder. See N.T., 3/21/22, at 19, 23.6 The trial court asked 

the Commonwealth to discuss the results of the SOAB report, and the 

Commonwealth highlighted that: (1) the evaluator considered Best’s criminal 

history, which includes five other arrests involving allegations of sexual 

offenses but did not result in convictions; (2) Best’s other arrests, and the 

present convictions, involve a pattern, i.e., Best approached a stranger, used 

a weapon, and forcibly compelled sex; (3) the assault of D.C. lasted for hours 

and involved several sexual acts; and (4) Best’s criminal history involves

multiple victims because his other arrests involve separate victims. See N.T., 

3/21/22, at 19-22. The Commonwealth then stated the evaluator’s conclusion 

as follows:

[H]aving reviewed all of the records available, having 

considered all of the factors specified under Pennsylvania law, and 

having considered the current and credible sex offender research, 

it [was] this board member’s professional opinion with a 

reasonable degree of professional certainty that Mr. Best meets 

the criteria to be classified as a[n SVP] under Pennsylvania law.

Id. at 22-23. The Commonwealth marked the SOAB report as Exhibit C-1, 

but did not formally request that the trial court admit the report into evidence. 

See id. 

Best’s counsel responded by noting “objections to some of what [was] 

put in” the SOAB report. See id. at 23. Counsel noted that none of Best’s 

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6 The certified record did not contain the transcript of the SVP and sentencing 

hearing or a copy of the SOAB report, but after an informal inquiry with the 

trial court, this Court obtained a copy of the SVP and sentencing hearing. As 

noted herein, the Commonwealth did not move to admit the SOAB report into 

evidence, and this Court did not receive a copy of the report.
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other arrests resulted in convictions because the Commonwealth withdrew or 

discontinued three cases, the fourth did not involve the filing of criminal 

charges, and the fifth remained pending. See id. at 23-24. Counsel disputed 

the evaluator’s consideration of the several factors, noting: (1) Best’s only 

conviction for sexual offenses involved one adult female, D.C., who did not 

have mental disabilities; (2) his prior record score was zero; and (3) he did 

not have a history of using drugs or mental health illness. See id. at 23-27. 

Counsel also referenced the evaluator’s use of the term “personality 

disorder” but argued that the evaluator did not interview Best as part of the 

assessment or have enough information to “make a diagnosis like that.” Id. 

at 25-26. In response, the trial court noted: 

I’m looking at paragraph 1 under mental abnormalities, 

personality disorder criteria. In the second paragraph under the 

number one, the report does say that Mr. Best’s behaviors are 

consistent with a diagnosis of antisocial personality disorder. He

has repeatedly shown a disregard for the rights of others through 

his offending. However, there is insufficient evidence to confirm 

this diagnosis, including the lack of information about the onset of 

a conduct disorder before age 15. So, it does -- while they’re 

saying his behavior is consistent, they certainly aren’t making a 

diagnosis. In fact, they're saying there’s insufficient evidence[] to 

really make a diagnosis, or insufficient information.

N.T., 3/12/22, at 26.

Best’s counsel concluded her statements, arguing: 

So, those are our objections, and what we would say to that 

is that . . . I understand what the board is attempting to do, but 

I believe they’ve fallen short of the clear and convincing 

requirement to determine someone as an SVP, because he does 

have, I believe, eight or nine factors that do not correspond to the 
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[fourteen]-factor test. So, we would ask that you not find him a 

sexually violent predator. 

See id. at 27. Best, however, did not object to the Commonwealth’s use of 

the report at the hearing, the qualifications of the SOAB evaluator to render 

an expert opinion that he met the criteria for designating him as an SVP, or 

the Commonwealth’s decision not to call the SOAB evaluator as a witness at 

the hearing. See id. at 23-27. 

The trial court then ruled as follows: 

Okay. Counsel, I have had a chance to listen to your 

arguments, of course, here today. I’ve also had a chance to 

review the assessment that was prepared in this matter in relation 

to Mr. Best. I’ve had a chance to review the factors that the 

assessment noted -- or that the assessor noted when making their 

recommendation or drawing a conclusion as to whether Mr. Best 

was, in fact, a[n SVP]. After reviewing all of the paperwork related 

to this case -- or specifically the [SOAB] assessment, after

reviewing the factors that were written about, I am going to find 

that [Best] is [an SVP]. Based on the assessment and based on 

the factors, I do believe that there is clear and convincing evidence 

of such.

See id. at 27-28. The trial court then sentenced Best to an aggregate term 

of ten to twenty years of imprisonment followed by four years of probation. 

Best timely filed post-sentence motions seeking, in relevant part, a new trial 

because the verdicts were against the weight of the evidence. The trial court 

denied the post-sentence motions, and Best timely appealed. Both Best and 

the trial court complied with Pa.R.A.P. 1925.

Best raises the following issues, which we have reordered for our review: 

[1.] Did the trial court commit reversible error by denying Mr. 

Best’s post-sentence motion where the verdict was against 

the weight of the evidence?
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[2.] Was the evidence sufficient to designate Mr. Best as a[n SVP]

where the Commonwealth did not call any witnesses at the 

SVP hearing?

Best’s Brief at 9 (reordered).

We first address Best’s issue challenging the weight of the evidence

supporting his convictions. When considering whether a verdict was against 

the weight of the evidence, the trial court must first determine whether the 

verdict “shocks the conscience,” that is, whether “notwithstanding all the 

facts, certain facts are so clearly of greater weight that to ignore them or to 

give them equal weight with all the facts is to deny justice.” See 

Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (internal citation 

and quotations omitted). This Court reviews the trial court’s exercise of 

discretion when denying relief, not the underlying question of whether a 

verdict is against the weight of the evidence. See id. We will find an abuse 

of discretion where the trial court's “judgment is manifestly unreasonable or 

where the law is not applied or where the record shows that the action is a 

result of partiality, prejudice, bias or ill-will.” See id. (internal citation 

omitted).

Best argues that the trial court should have granted his post-sentence 

motion for a new trial because “the verdict, based on unreliable and 

contradictory evidence, was pure conjecture.” Best’s Brief at 23. He asserts 

that D.C.’s trial testimony that he sexually assaulted her and she did not 

consent to the encounter was unworthy of belief. He argues that D.C. was a 

prostitute, agreed to his initial proposition for sex, and suggested the place 
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for their encounter. See id. at 23-24. Best adds that D.C. lacked credibility 

because she did not disclose she had drug issues and was working as a 

prostitute when she reported the rape in 2013, and she did not inform 

detectives that she made prior claims of being sexually assaulted. See id. at 

24-25. Best also contends that D.C.’s own criminal history showed that she 

could not be trusted to tell the truth. See id. at 25. In sum, Best asserts the 

trial court should have credited his evidence that he only had consensual 

intercourse with D.C., and accepted his arguments that D.C. fabricated the 

account of a rape because she was angry that he ejaculated inside of her and 

he refused her demands for additional payment. Id. at 24. 

The trial court concluded that it properly denied Best’s challenge to the 

weight of the evidence. The trial court found D.C.’s testimony “extremely 

credible” and the defense’s theory of the case “did not make any sense.” See

Trial Court Opinion, 6/8/22, at 5 (internal citations to the record and 

quotations omitted). The trial court reasoned that D.C. had reasons for not 

being entirely forthcoming with medical providers and detectives, namely, her 

fear that they would not believe her if she disclosed that she worked as a 

prostitute to pay for drugs and had a criminal history. See id. at 5-6. The 

trial court added the facts that D.C. almost immediately “flagged down EMTs” 

and reported the rape, as well as the scarring on her knees, corroborated her 

testimony of a non-consensual sexual assault. See id. at 6.

Following our review, we discern no basis to disturb the trial court’s 

decision to reject Best’s challenge to the weight of the evidence. The trial 
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court made findings of fact and credibility based on the evidence and credited 

D.C.’s trial testimony that while she consented to a limited sexual encounter, 

she did not consent to a prolonged sexual attack that included oral, vaginal, 

and anal intercourse, and that Best had forcibly coerced her during the attack. 

See N.T., 7/13/21, at 14-16, 24-27; see also Trial Court Opinion, 6/8/22, at

5. Similarly, the trial court stated reasonable bases to reject Best’s evidence 

and arguments that D.C. not only fabricated her initial 2013 reports of a rape 

but also falsified her 2021 trial testimony because of a dispute over fifteen 

dollars. See Trial Court Opinion, 6/8/22, at 5. Thus, we find no abuse of 

discretion in the trial court’s decision and conclude that Best’s challenge to the 

weight of the evidence merits no relief. See Clay, 64 A.3d at 1055.

In his next issue, Best challenges the sufficiency of the evidence 

underlying the trial court’s SVP determination. Challenges to the sufficiency 

of the evidence present questions of law, and our standard of review is de 

novo, and our scope of review plenary. See Commonwealth v. Meals, 912 

A.2d 213, 218 (Pa. 2006). This Court must review an undiminished record 

without regard to the admissibility of the evidence. See Commonwealth v. 

Sanford, 863 A.2d 428, 432 (Pa. 2004). Moreover, it is not the role of this 

Court to question or reweigh the evidence. See Meals, 912 A.2d at 222-23. 

Rather, this Court’s sufficiency review is limited to whether the record, when 

viewed in a light favorable to the Commonwealth, establishes clear and 

convincing evidence to sustain the trial court’s finding that an individual meets 

the statutory definition of an SVP. See id. 
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The touchstone for an SVP determination is whether the individual 

convicted of a sexually violent offense has a mental abnormality or personality 

disorder that makes him likely to engage in predatory sexually violent 

offenses. See 42 Pa.C.S.A. § 9799.12; accord Commonwealth v. Feucht, 

955 A.2d 377, 381 (Pa. Super. 2008). Subchapter H of SORNA details the 

procedures to determine whether an individual is an SVP. See 42 Pa.C.S.A. 

§ 9799.24. Specifically, the trial court must order the SOAB to conduct an 

assessment, after which the SOAB conducts an assessment and submits its

report to the district attorney. See 42 Pa.C.S.A. § 9799.24(a), (d). The 

Commonwealth may then praecipe the trial court for an SVP hearing and serve 

copies of the praecipe and the SOAB report to the defense. See 42 Pa.C.S.A. 

§ 9799.24(e)(1). However, as with expert opinions generally, the 

Commonwealth’s offer of opinions stated by an SOAB evaluator must comport 

with the applicable rules of evidence. See Commonwealth v. Prendes, 97 

A.3d 337, 360 (Pa. Super. 2014) (noting that “an SOAB expert opinion falls 

within the general rules regarding expert witnesses”), overruled sub silentio 

on other grounds by Commonwealth v. Hvizda, 116 A.3d 1103, 1106 (Pa. 

2015).

Section 9799.24(e) governs the conduct of an SVP hearing and 

provides, in relevant part:

(2) The individual and district attorney shall be given 

notice of the hearing and an opportunity to be heard, the 

right to call witnesses, the right to call expert witnesses 

and the right to cross-examine witnesses. . . .
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(3) At the hearing prior to sentencing, the court shall 

determine whether the Commonwealth has proved by 

clear and convincing evidence that the individual is a 

sexually violent predator.

42 Pa.C.S.A. § 9799.24(e)(2)-(3) (emphases added). The requirements of

section 9799.24 are distinct from statutes governing other documents 

properly before the trial court at the time of sentencing. For example, a 

presentence investigation report is automatically made “available to the court”

for the purpose of determining a sentence. 42 Pa.C.S.A. § 9733(1). Section 

9799.24, by contrast, requires that the Commonwealth present clear and 

convincing evidence and does not expressly allow a court to automatically 

consider the SOAB report when determining whether to designate an

individual as an SVP. See 42 Pa.C.S.A. § 9799.24(e)(2)-(3).

Best claims that the Commonwealth’s reading of the contents of the 

SOAB report at the SVP hearing was insufficient for the trial court to designate 

him as an SVP. Best acknowledges that the SOAB evaluator concluded that 

he met the criteria for classification as an SVP. See Best’s Brief at 20. 

However, he emphasizes that the Commonwealth failed to call any witnesses 

at the SVP hearing, establish a foundation for the court to consider the report

as substantive evidence, or establish the evaluator’s qualifications to render 

an expert opinion. See id. at 20-22. He further contends that the evaluator
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impermissibly offered opinions based on hearsay allegations from his other

arrests and present conviction.

7

 See id. at 21-22.

The trial court rejected Best’s challenge, concluding that the 

Commonwealth presented the recommendations of the SOAB evaluator. See

Trial Court Opinion, 6/8/22, at 8. The trial court reasoned that the 

Commonwealth detailed the similarities in the facts underlying Best’s other 

arrests and his present conviction. The court found that the facts of Best’s 

current offenses demonstrated that Best exceeded the means necessary to 

achieve the offenses and displayed unusual cruelty. See id. at 9. The trial 

court concluded that the Commonwealth was under no obligation to call the 

evaluator to testify at the hearing and “the information” the Commonwealth

put forth at the hearing provided clear and convincing evidence that Best met 

the criteria for an SVP. Id. at 9-10.

Following our review, we reluctantly conclude that there is no competent 

record for this Court to conduct a proper sufficiency review. Section 9799.24 

imposes a burden on the Commonwealth to praecipe for and produce at the 

SVP hearing formal evidence, which the Commonwealth did not meet in this 

case. See 42 Pa.C.S.A. § 9799.24(e)(1)-(3). To the extent the 

Commonwealth elected to proceed solely on the SOAB report, it bore a 

____________________________________________

7 Because the Commonwealth in the case sub judice presented no formal 

evidence at the SVP hearing, this case presents a different issue than 

considered in Commonwealth v. Aumick, --- A.3d ---, ---, 2023 PA Super 

103, 2023 WL 3939850 at *7-8 (Pa. Super. 2023) (en banc).

 
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minimal burden of creating a competent record by moving for the admission 

of the SOAB report into the record or obtaining a stipulation to the report’s 

admission into evidence. See Prendes, 97 A.3d at 360 (noting that “an SOAB 

expert opinion falls within the general rules regarding expert witnesses”). 

Otherwise, the Commonwealth’s burden of production to prove by clear and 

convincing evidence that Best was an SVP required it to call an expert to 

provide testimonial evidence.

8

 See id. In the instant case, the 

Commonwealth merely marked the SOAB report as an exhibit, without 

formally moving to admit it into evidence, and only summarized the results of 

SOAB report as a part of arguments to the trial court. See N.T., 3/21/22, at 

19-23; see also Prendes, 97 A.3d at 360 (noting that “an SOAB expert 

opinion falls within the general rules regarding expert witnesses”). Moreover, 

the trial court’s reliance on this deficient record and counsel’s arguments was 

improper. See Commonwealth v. Allshouse, 969 A.2d 1236, 1241 (Pa. 

Super. 2009) (holding that a trial court erred when revoking probation by 

relying on a letter from a victim’s relative and police report when those 

documents were hearsay, not offered as exhibits, not admitted into evidence, 

and not contained in the certified record); see also In Interest of J.B., 189 

____________________________________________

8 We acknowledge that “an expert’s opinion, which is rendered to a reasonable 

degree of professional certainty, is itself evidence.” Commonwealth v. 

Fuentes, 991 A.2d 935, 944 (Pa. Super. 2010). However, for a court to 

properly consider an opinion, the Commonwealth must move for its admission 

and the trial court must admit the evidence into the record. 
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A.3d 390, 406 n.19 (Pa. 2018) (stating that counsel’s statements are not 

evidence).

We acknowledge that Best did not object to the Commonwealth’s 

decision to rely solely on the SOAB report at the SVP hearing, nor did he 

preserve a claim that the Commonwealth should have called the evaluator to 

testify by raising it at the hearing. See N.T., 3/21/22, at 19-22. Moreover, 

his Rule 1925(b) statement did not include a specific claim that the trial court 

should not have relied solely on the report.9 Indeed, Best appears to assume 

that the trial court had admitted the SOAB report or could properly have 

considered it as evidence, and his challenges in this appeal largely go to the 

weight of the analysis and conclusion set forth in the SOAB report. See Best’s

Brief at 20-23. 

Under the circumstances of this case, however, we decline to find waiver 

because the Commonwealth did not carry its initial burden of producing 

competent evidence at the SVP hearing and the record thus contains no 

evidence, whether properly or improperly admitted at the hearing, to conduct 

____________________________________________

9

In his Rule 1925(b) statement, Best asserted: “[t]he evidence was 

insufficient for the Court to designate Mr. Best as a[n SVP]. The 

Commonwealth did not call any witnesses at the SVP hearing. Accordingly, 

the Commonwealth’s evidence did not prove by clear and convincing evidence 

that [he met the statutory definition of an SVP.]” Rule 1925(b) Statement, 

5/21/22, at ¶ 2.
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a proper sufficiency review or determine whether the error was harmless.10 

Given the apparent misunderstanding shared by the parties and the trial court

as to the Commonwealth’s burden of production and the admissibility of the 

opinions stated in the SOAB report, we conclude that the proper remedy is to 

remand this matter to the trial court for the conduct of a new hearing at which 

the Commonwealth may admit evidence from which the trial court can render 

an appropriate determination as to Best’s designation as an SVP and this Court 

can undertake a proper review. 

For these reasons, we reject Best’s weight of the evidence challenge and 

affirm the judgment of sentence, but vacate the SVP determination and 

remand this matter for a new SVP hearing. 

Judgment of sentence affirmed in part. SVP determination vacated. 

Case remanded with instructions. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/29/2023

____________________________________________

10 Best arguably had some role in ensuring the SOAB report was made part of 

the certified record transmitted to this Court. However, because the 

Commonwealth did not formally move to admit the SOAB report and the trial 

court did not admit it, we cannot fault Best for failing to provide this Court 

with a document that was not made part of the record.